Chrétien is a member of the Quebec Bar and at the time this article was written
was Director of the Legal and Legislative Affairs Branch at the National
Assembly in Quebec City.
On 11 June 1998, the
Parliament of Quebec enacted amendments to the Act respecting the National
Assembly which affords protection to the Members of the National Assembly
supplementary to the rights, privileges and parliamentary immunity they
currently enjoy collectively and as individual Members. This article looks at
provisions of this Act which is the first of its kind in Canadian legislatures.
The new provisions of the Act
Respecting the National Assembly entitle all Members, including former
Members, to payment on certain specified conditions of defence costs and
judicial costs arising from proceedings brought against them after 11 June 1998
by a third person for any act or omission in the performance of their duties of
office. Members are also entitled to payment of expenses incurred for
counsel in the event that they are summoned to appear at an inquiry, a
preliminary inquiry or judicial or quasi-judicial proceedings in connection with
their duties of office.
Defence costs are defined in a
by-law 1 of the
Office of the National Assembly as extrajudicial costs, namely fees or costs an
advocate may charge for professional services arising from the practice of the
profession of advocate and that are incurred to defend the client. They
include expert’s fees. Judicial costs consist of costs taxable by the
competent officer of a court. Expert’s fees are the costs incurred by the
Member’s advocate to hire the expert consultants required for the Member’s
defence. Expenses incurred for counsel refer to the fees or costs charged by an
advocate to assist a Member summoned to appear in the circumstances described
In every case, a Member in
circumstances giving entitlement to payment of costs must ask the Office of the
National Assembly to fix the maximum amount payable. After obtaining the
advice of the jurisconsult of the National Assembly 2, the Office may
fix that amount. The jurisconsult is the officer of the National Assembly
whose duties are to give opinions to Members on situations of incompatible
duties and conflicts of interest which a Member may encounter in the
performance of duties.
It falls to the Member to retain
an advocate after consulting the President of the National Assembly. The
fees payable for professional services rendered by the advocate are established
in accordance with the by-law referred to above on an hourly or lump-sum basis
provided for in the by-law.
As regards the protection, the
Act sets limits on the amount payable. It provides that in the case of criminal
proceedings, defence costs and judicial costs will be paid by the National
Assembly only if the case was withdrawn or dismissed, or if the Member was
acquitted by a judgment that has become res judicata or was discharged.
In this type of proceedings, the National Assembly therefore will not pay any
amount unless one of those situations has prevailed.
In the case of penal
proceedings, no costs or expenses may be paid and the Assembly is required to
recover any costs or expenses already paid if the Member is found guilty of a
penal offence. Costs and expenses are payable, however, if the Office of the
Assembly, after obtaining the advice of the jurisconsult, is of the opinion
that the Member had reasonable grounds for believing that the conduct in
question was in conformity with the law. In the latter case, the Assembly
will also assume payment of the pecuniary penalty, the reason being that in
penal proceedings, an “absolute liability” offence may be committed in good
faith free of wrongful intent on the part of the offender even though a
conviction is warranted and no defence of reasonable care is admissible.
In proceedings of a civil
nature, the Act provides that if a Member is by reason of an act or omission in
the performance of duties held liable for damage in a judgment that has become res
judicata, that is to say final, conclusive and enforceable, no costs or
expenses may be paid by the Assembly. Furthermore, the Assembly is
required to recover any costs or expenses already paid if, after obtaining the
advice of the jurisconsult, the Office of the Assembly is of the opinion that the
Member acted in bad faith.
If the Member did not act in bad
faith, the Assembly will pay costs and expenses and will also pay any pecuniary
penalty, including damages, imposed by a judgment in a civil suit. No payment
will be made, however, if the Office of the Assembly, after obtaining the
advice of the jurisconsult, is of the opinion that a gross fault was committed
by the Member or that the judgment should be appealed by the Member.
Article 1474 of the Civil Code of Quebec defines gross fault as a fault
which shows gross recklessness, gross carelessness or gross negligence.
As explained by Jean-Louis Beaudoin, “Gross fault, as intended by the
lawmaker in article 1474 of the Civil Code of Quebec, is serious, gross and
inexcusable neglect which shows gross recklessness, carelessness or negligence
and therefore utter contempt for the interests of other individuals”. 3 Dussault and
Borgeat have also elaborated on the term: “Not defined by statute, the notion
of gross fault is generally interpreted in the case authority as involving an
act committed by gross negligence, in bad faith, or with the intention to
To summarize, the law in Quebec
since 11 June 1998 provides that all Members, including former Members, are
entitled to payment by the National Assembly of defence costs and judicial
costs arising out of proceedings brought against them for any act or omission
in the performance of their duties of office. Expenses incurred for
counsel are also to be paid where a Member is summoned to appear at an inquiry,
a preliminary inquiry or in judicial or quasi-judicial proceedings in
connection with the Member’s duties of office.
The law specifies the conditions on which costs or expenses
will be paid and the cases in which such payment is precluded. In each
case, the Office of the National Assembly must fix the maximum amount of costs
To conclude, this law also
determines the cases in which the National Assembly is authorized to assume
payment of a pecuniary penalty, such as a fine or damages, arising from a
judgment against a Member. That type of penalty imposed by the court will
be assumed in totality by the Assembly, subject to the conditions specified in
This type of protection will no
doubt be reassuring to the Members currently in office and to future candidates
as regards the risks they incur in their duties of public office as Members of
the National Assembly. Members will henceforth be able to enjoy the full
independence they require to efficiently perform those duties.
Parliamentary democracy itself will as a consequence be more effectively
1. By-law respecting payment to a
Member or former Member of an amount paid as a result of proceedings or a
summons to appear, adopted on 11 June 1998 by Decision 886 of the Office of the
2. Claude Bisson, former Chief Justice of
the Court of Appeal of Quebec, was unanimously appointed by the National
Assembly on 19 June 1996 to act as jurisconsult of the National Assembly.
3. Jean-Louis Beaudoin, Les
obligations, 4th Ed., Yvon Blais, Cowansville, 1993, p. 457.
4. René Dussault and Louis Borgeat, Administrative
Law, A Treatise, 2nd Ed., Vol. II, Carswell, Toronto, 1988, p. 147.